20091026 TZCA Tabora

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: KIMARO, J,A,. MBAROUK J.A., And MASSATl,J,A.) CRIMINAL APPEAL NO. 137 OF 2006 1. AMANI KATEKELA ' }··················APPELLANTS 2. SIMON CHARLES@ NTUBIGWA VERSUS THE REPUBLIC ....... I ■ ••••••••• ■ I-~-- ••••• I ••• ■ ••• ■■ ••••••• ••• RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Tabora) (MZIRAY.J.) dated 28th day of October, 2005 in Criminal Appeal Case No. 29 cf30 cf31 of 2002 •••••••••••••••• JUDGMENT OF THE COURT 22nd ' October, 2009 & 28th October,2009 1 MBAROUK,J,A.: In the District Court of Kigoma at Kigoma, Amani Katekela, Simon Charles@ Ntubigwa (the appellants) and five others were jointly charged with three counts. The first cour:1t was of Burglary contrary to section 294(1) of the Penal Code. The second and third counts were of armed robbery contrary to sections 285 and 286 of the Penal Code respectively. The appellants were convicted and • sentenced to thirty years imprisonment with twelve strokes of the cane for the third count of armed robbery. Aggrieved, the appellants unsuccessfully appealed to the High Court (Mziray.J.) Still protesting their innocence they have lodged this second appeal. The appellants appeared before us in person. From the totality of their grounds of appeal, the main issue raised relates to their identification. To facilitate an easy appreciation of this ground of appeal, we have found that it is instructive to set out the facts of the case briefly. According to the testimonies of Anza Wema Bael (PW1) a bus conductor of motor vehicle and registration No.UJ 2099 plying between Manyovu, Mnanila and Kasulu, that on 22.5.99 at about 07.45 hrs. they were travelling to Kasulu. On arrival between Songambele and Heru Juu village, a person appeared from the bush and stood in the middle of the road. He was armed, and ordered the motor-vehicle to stop. The driver stopped the motor vehicle and three other people joined the person who stopped the motor vehicle. He also ordered PW1 to open the door and all passengers to go outside the motor vehicle. PW1 further testified that the bandits were armed with machetes and clubs which were used to assault the passengers while searching and taking money from them. PW1 said his Tshs. 7,500/ = and other properties possessed by the passengers were stolen. After getting the collection, the bandits went back into the bush. PW1 stated that he managed to identify the appellant, because they did not conceal their faces. PW1 and Samwel Mgendi 2 . I (PW4) who was a passenger in that bus testified that they identified the appellants at Kasulu Police Station where · the identification parade was conducted. In their defence at the trial, the appellants denied any involvement in the offence charged against them. As for the 1st Appellant, he said he was arrested while on "safari'~ to see "Mganga". He then saw a group of people who stopped him demanding him to show his identity card. But before giving any reply he heard them saying "ndio hawa hawa". He was taken to the office of V.E.O Mganza and then to Kasulu Police Station where he was charged. The 2nd Appellant gave a similar story, where he said, he left for Muyama village to sell tobacco. While on the way to Heru Juu, he was arrested. He said, at Muganza he saw a group of people coming from the opposite direction who started to interrogate him. Then, he heard one of the people saying "ndio hao hao''. He was then arrested and sent to the village office and later, to Kasulu Police Station where he was charged. At the hearing, both appellants had nothing more to say, understandably so being lay persons. They adopted their grounds as drawn in their memoranda of appeals. 3 On his part, Mr. Jackson Bulashi, learned Senior State Attorney for the respondent Republic declined to support the conviction and sentence. He submitted that the identification evidence adduced by PWl and PW4 in their testimonies was not watertight. He submitted that no description was given as to the identity of the appellants when they testified. In support of his argument he cited to us the famous case of Mohamed Alhui V. Rex (1942) 9 E.A. 72 where the Court of Appeal for Eastern Africa emphasized the necessity of giving a description of the accused person purported to have been identified. In the absence of such a description of the appellants in this case, he urged us to find that the appellants appeal meritious. In this case, the facts are very clear, neither PWl nor PW4 knew the appellants before. We are of the considered opinion that these witnesses should have given a description of the appellants as they saw them at the time of the incident. In reiterating the position of the Court in considering the correct identification of an accused person, this Court in Ayubu s/ o Zahoro V. Republic Criminal Appeal No.177 of 2004 (Unreported) stated that: '~s happened in this case, the arrest of the appellant the following day upon the bare assertion that "we identified him'; is not sufficient It is not free from mistaken identity. In considering whether conditions are favourable for correct identification, the 4 Court has consistently held that in identifying an accused person, where a witness saw the accused for the first time, there is need for the witness to describe the identity in detail'~ (Emphasis added) Putting emphasis on the point of the need to describe the identity in detail for correct identification, this Court in Ayubu s/ o Zahoro (Supra) quoted the case of Mohamed Alhui V. Rex (Supra) where the Court of Appeal for Eastern Africa held: ''in eve,y case in which there is a question as to the identity of the accused, the fact of there having been a description given and the terms of that description given are matters of highest importance of which evidence ought always to be given: first of all, of course, by the persons who gave the description and purport to identify the accused, and then by the person or persons to who the description was given. " Also, in Raymond Francis V. Republic [1994] TLR 100, this Court held: 5 ,. ''Since all the witnesses admitted seeing the appellant for the first time during the incident that day it was necessary in their evidence of identity to describe in detail the identity of the appellants when they saw him at the time of the incident " In the instant case, applying the principles laid down in the cases earlier cited, and considering the fact that PW1 and PW4 on which the prosecution relied upon their evidence to identify the appellants, we are of the opinion that without a detailed description of the appellants at the trial, it is not safe to say that the appellants were correctly identified at the scene of the crime. The possibility of mistaken identification could not be ruled out. We are thus of the considered opinion that, it would be unsafe to sustain the conviction on such a flimsy identification evidence of PWl and PW4. For the reasons stated herein above, the appeal is allowed, the convictions quashed and sentences set aside for both appellants. The appellants are to be released from custody forthwith unless otherwise lawfully held. DATED at TABORA this 26th day of October, 2009. 6 N.P. KIMARO JUSTICE oFIAPPEAL M.s. MBAkouK JUSTICE OF!APPEAL S.A. MAJSATI JUSTICE OIF! APPEAL I I I I certify that this is a true copylof the original. -::::::.-:::::::~~;;:----f/ I A) DEPUTY REGISTRAR 7